Ray McGovern: My Take

Deterring Torture Through the Law - By Coleen Rowley and Ray McGovern

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Deterring Torture Through the Law

By
Coleen Rowley and Ray McGovern

“First,
let’s kill all the lawyers” may have made sense in that Shakespearian scene,
but there is a far simpler solution to the legal ambiguities regarding what to
do now about the torture approved by President George W. Bush. We suggest this variant: First, let’s have the lawyers review their
notes from Criminal Justice 101.

The
professor whom Coleen Rowley had for that course at the University of Iowa was
the consummate curmudgeon. He kept
repeating himself. It is now clear
why. The old fellow hammered home the
basic purposes of the criminal justice system and the various kinds and degrees
of criminal intent. For Rowley, 24 years
as a FBI special agent and attorney helped make it all real.

Eight
years of the Bush/Cheney administration have served to make the matter of
criminal intent the first essay question on the final exam for Criminal Justice 101, so to speak. But obfuscation (much of it deliberate)
reigns; worst of all, it impedes the important task of seeking accountability
for those responsible for torture.

Criminal
intent comes in essentially three kinds:
No one needs much help understanding the “deliberate-premeditated-cold
blooded” first-degree intent, because
that’s the stuff of the movies--the perfect murder scheme or elaborate plot to
pull off the heist of the century. “Second-degree intent” is also easy to
grasp. It is the usual label for what
prompts people to commit unplanned crimes in the heat of passion, for example.

It
was to that third type of guilty intent—“recklessness”—that
the old law professor devoted most emphasis, using his favorite “Russian
Roulette” hypothetical to distinguish it from the first two types and from mere
negligence. His words still ring: “One cannot simply put a gun on a table
knowing there is a bullet in the cylinder, spin the cylinder, point it at a
person, pull the trigger and then say (when it goes off), ‘It’s not my fault,
because I was hoping it would spin to one of the empty chambers.’”

The
First and Third Degrees

The
evidence on the Bush administration’s torture decisions, which is becoming more
abundant and damning as the weeks go by, rules out second-degree intent; i. e., unplanned crimes in the heat of
passion. These decisions were much more
deliberate. As the saying goes, after
9/11 “everything changed.” With
virtually no opposition, the president was allowed to declare the country in a
“war on terror” and consider himself above the law.

Indeed,
after his address to the nation on the very evening of 9/11, Bush assembled his
top aides in the White House bunker and set a lawless path from the start. One of the aides present, Richard Clarke, has
written in his memoir, Against All
Enemies, that the president insisted:
“[W]e are at war…Nothing else matters…Any barriers in your way, they’re
gone…I don’t care what the international lawyers say, we are going to kick some
ass.”

A
bipartisan report released on Dec. 15, Senate
Armed Services Committee Inquiry Into the Treatment of Detainees in U.S.
Custody, highlights in its “First Conclusion” the fact that on Feb. 7, 2002
the president issued a written determination that the Geneva protections for
POWs did not apply to al-Qaeda or Taliban detainees; and that following that
determination, techniques like water boarding were authorized for use in
interrogation. The U.S. Supreme Court
ruled in June 2006 that such detainees could not be exempted from the
protections of Geneva, despite efforts to “redefine the law to create the appearance
of legality” for aggressive techniques, as the recent Senate report puts it.

Sounds
Premeditated, No?

Administration
apologists, from Rush Limbaugh to Attorney General Michael Mukasey claim that
none of those who approved or conducted torture had guilty intent, but were
only trying to protect national security.
(That’s right—the same Mukasey who professes not to know whether water
boarding is torture.)

Mukasey’s
sophistry calls to mind the disingenuous argument of other administration
lawyers that one could apply harsh interrogation techniques to a detainee, as
long as your intent is not to inflict pain but rather to obtain
information. Not to mention the pithy
hint provided by a CIA attorney: “If the detainee dies, you’re doing it wrong.”

Add
to this mix the remarkable guidance of Justice Department counsel, Jay Bybee
(now a federal judge), quoted in the Senate report:

“Violent acts
aren’t necessarily torture; if you do torture, you probably have a defense; and
even if you don’t have a defense, the torture law doesn’t apply if you act
under the color of presidential authority.”

Clearly,
the so-called “rotten apples” sat atop the proverbial barrel, as the Senate
report demonstrates time and time again.
If you’d like still more proof of premeditation and you missed Vice
President Dick Cheney Monday on ABC TV bragging about his role in facilitating
water boarding, please read the transcript.

Cheney’s
was the familiar above-the-law attitude, a reprise on his contemptuous “So?”—in
this case meaning, “So what are you going to do about it?” With Cheney admitting to his key role in
water boarding, Mukasey is no doubt relieved that during his confirmation
hearing he obeyed White House instructions to stonewall all attempts to get him
to concede what the whole world knows—that water boarding is torture.

Indeed,
the law is not in question. Water
boarding was wrong during the Spanish Inquisition and during the
Spanish-American war in the Philippines.
It was illegal during WW-II.
Americans as well as Japanese have been convicted and severely punished
for it.

Recklessness

For
those, who despite the above prefer to give President Bush the benefit of the
doubt regarding first-degree intent,
should know that the third type of guilty
intent, recklessness, also applies—in spades.

For
example, Cheney’s lawyer, David Addington, and then-White House Counsel Alberto
Gonzales dissed the hapless former Gen. Colin Powell, who as secretary of state
wrote to the White House in January 2002:

“A
determination that Geneva does not apply could undermine U.S. military culture
which emphasizes maintaining the highest standards of conduct in combat, and
could introduce an element of uncertainty in the status of adversaries.”

A
pity Powell did not have the courage of his convictions, for he now has reason
to be concerned about an eventual conviction of a different kind. Beneath the circumlocution quoted above is
his clear appreciation that, if he did not fight against what was clearly in
the cards, torture was likely to sully the Army and the nation to both of which
he owed so much.

“Could
introduce an element of uncertainty in the status of adversaries,” writes
Powell. Could introduce, say, reckless
Russian roulette. In his interview with
ABC, Cheney put the old law professor’s hypothetical smoking gun right out
there on the table.

Deterrence

A
widespread lack of understanding regarding the purposes served by the criminal
justice system—and the penal system—is a major obstacle to even entertaining
the thought of prosecuting administration officials for torture. All too many pundits are claiming that the
country should simply move on and just close the book on this painful chapter—and
that to do otherwise would simply be to try to extract vengeance.

But
it is not about vengeance. The key goal
here is deterrence—the final and most
important goal of our criminal justice and
penal systems in such circumstances.

At
this point, the emphasis needs to be on establishing the facts—not punishment. Priority must be given to determining how our
country ended up torturing people. Just
as Cheney has termed water boarding a “no brainer,” it is equally a “no
brainer” that we must focus now on his self-admitted role, as well as the
revelations in the Senate report and other evidence that has come to
light. An independent prosecutor like
Patrick Fitzgerald would not need a lot of time to establish the facts.

Our
country’s values and the immorality of torture are important
considerations. And the law, of course,
is also key—or should be. Seldom have we
seen it more cynically twisted and abused.
But here is something else that must be thrust into public
consciousness—the reality that, TV hero Jack Bauer’s mythical exploits aside,
torture never can be counted upon to
yield reliable information.

THAT
is the quintessential “no brainer.” For,
as the head of U.S. Army intelligence, Lt. Gen. John Kimmons,
asserted on September 6, 2006: “No good intelligence is going to come from
abusive practices. I think history tells us that. I think the empirical
evidence of the last five years, hard years, tells us that.”

Stop
Torture Now

Let
us have no backsliding. Barack Obama
must order an abrupt halt to torture, as he has promised—and preferably on
January 20, right after he is sworn in as president. A timely report from an independent
prosecutor would surely be helpful in buttressing and justifying that order.

Before
the Senate Armed Services Committee’s released a summary of its report on Dec.
11, and before Cheney threw down the gauntlet four days later, what seemed to
make the most sense was the more gradual approach proposed by the insightful
lawyer/writer, Scott Horton (see December issue of Harper’s). Horton calls for
the appointment of a commission peopled by men and women of unimpeachable
integrity, in order to “provide a comprehensive narrative, setting out in
detail how U.S. torture policy came to be formed and identifying the key actors
and the decisions they made.”

An
excellent approach. And this, of course,
is where the penal factors and deterrence would come very much to the fore.

It
is important to point out that the independent prosecutor and the commission
approaches are in no way mutually exclusive.
If both can be done expeditiously, both should be approved. What Horton may not have anticipated is that,
in releasing the shatteringly candid results of their Senate committee’s
two-year investigation, Senators Carl Levin and John McCain have named names,
jump-starting—and hopefully shortening—deeper investigation.

It
may be a hopeful sign of the times that on Dec. 18, even the editors of the New York Times lifted their heads out of
the sand long enough to endorse the importance of doing what is necessary to
deter crimes like torture:

“Unless
the nation and its leaders know precisely what went wrong in the last seven
years, it will be impossible to fix it and make sure those terrible mistakes
are not repeated.”

+++++++++++++++++++++++++++++++++++++

Coleen Rowley,
a FBI special agent for almost 24 years, was legal counsel to the FBI Field
Office in Minneapolis from 1990 to 2003.
She came to national attention in June 2002, when she testified
before Congress about serious lapses before 9/11 that helped account for the
failure to prevent the attacks. She now
writes and speaks on ethical decision-making and on balancing
civil liberties with the need for effective investigation.

Ray McGovern,
a former Army infantry/intelligence officer, and then a CIA analyst for 27
years, now works with Tell the Word, the publishing arm of the ecumenical
Church of the Saviour in inner-city Washington.
Both authors are members of the Steering Group of Veteran Intelligence
Professionals for Sanity (VIPS).